Heard: April 8, 2016.
for divorce filed in the Essex Division of the Probate and
Family Court Department on January 17, 2001.
for modification and contempt, filed on August 2, 2011, and
October 12, 2012, respectively, were heard by Susan D. Ricci,
J.; a motion for reconsideration, filed on July 7, 2014 was
heard by her, and judgment was entered by her.
Mary-Ellen Manning for the mother.
A. Perkins for the father.
Present: Kafker, C.J., Wolohojian, & Maldonado, JJ.
we reach the question left open in T.M. v.
L.H., 50 Mass.App.Ct. 856, 861 (2001), namely,
whether "a judge, in compelling circumstances of an
equitable nature, and without contravening G. L. c. 119A,
§ 13 (a.), may apply a credit in calculating child
support arrearages to reflect payments made in a manner other
than as directed by the original [child support]
order." We conclude that, despite the statutory
prohibition against retroactive modification of child support
judgments "except with respect to any period during
which there is pending a complaint for modification, "
G. L. c. 119A, § 13 (a.), inserted by St. 1987, c. 714,
§ 1, a judge may -- in certain very limited
circumstances -- grant and apply such an equitable credit to
offset a child support arrearage accrued during a period when
there was no pending complaint for modification.
fourteen years of marriage, the parties divorced on July 14,
2003, pursuant to a judgment of divorce which incorporated
the parties' separation agreement. The separation
agreement provided, in pertinent part, that the mother would
have primary physical custody of the parties' three
children, Elliot, Ari, and Hannah, and that the father would
pay monthly child support in the amount of $4, 500. The
separation agreement also contained several provisions
relating to the children's college education. In one of
those provisions, the parties "agree[d] that the choice
of college or other institutions shall be made jointly, with
due regard to the children's wishes, welfare, needs and
aptitudes, and the parties' respective financial
circumstances. Neither party shall make commitments to a . .
. college . . . without first notifying the other and
obtaining his or her approval . . . ." The parties also
"agree[d] to contribute to the college costs of the
children to the best of their financial ability." The
separation agreement's provisions relating to
"custody, care, visitation, support, education and
medical care of the parties' minor children" were
merged with the judgment of divorce, while the remaining
provisions survived and were not merged with the judgment.
time of the divorce in 2003, all three children lived with
the mother. However, by January 1, 2007, the parties'
oldest child, Elliot, had moved into the father's home.
The father thereafter reduced his child support payments by
one-third, to $3, 000 per month, without court approval.
than two years later, on April 4, 2009, the parties entered
into a signed and notarized "Agreement for Judgment on
Modification" (2009 agreement), which provided that the
father would pay monthly child support of $3, 400, along with
a lump sum of $2, 500 upon the court's approval of the
2009 agreement, and an additional $2, 900 over the next six
months. On April 9, 2009, the father filed the 2009 agreement
with the Probate and Family Court; however, it was returned
to him without being docketed due to certain procedural
deficiencies. Those deficiencies were not cured, and the
2009 agreement was never refiled with the Probate and Family
August, 2011, the parties' second child, Ari, had also
moved into the father's home. In early August, 2011, the
father filed another complaint for modification (2011
complaint for modification), which he served on the mother on
August 11, 2011. In the 2011 complaint for modification, the
father requested (1) a reduction in his child support in
light of the fact that two of the three children were living
with him, and (2) an order requiring the mother to contribute
to the children's college expenses. On October 13, 2011,
a judge of the Probate and Family Court allowed the
father's motion for temporary orders, reducing the
father's child support payments from $4, 500 per month to
$200 per week.
December, 2011, the parties' third child, Hannah, moved
into the father's home, at which point all three children
were living with the father and principally dependent on him
for support and maintenance. On May 4, 2012, the judge
allowed the father's motion to terminate child support.
October 12, 2012, the mother filed a complaint for contempt
asserting that the father was approximately $103, 701 in
arrears for child support that accrued before the court's
October 13, 2011, temporary order.
17, 2014, following a six-day trial on the consolidated
modification and contempt proceedings, the Probate and Family
Court entered an "Amended Judgment of Modification,
" an "Amended Judgment on Contempt, " and
supporting "Amended . . . Findings of
Fact." In the amended judgment of modification,
the judge reduced the father's child support obligation
to $280 per week, retroactive to August 11, 2011, the date on
which the mother had been served with the 2011 complaint for
modification. The judge terminated the father's child
support obligation retroactive to December 31, 2011, the date
upon which "[all] three children were solely dependent
upon and residing with [the] [f]ather." The judge
further ordered the mother to reimburse the father for
"approximately seventeen percent (17%) of the college
education expenses of the three children either paid or
undertaken in the form of a loan by [the] [flather" from
August 11, 2011, through December 31, 2011, and ten percent
of the college expenses "[f]rom January 1, 2012 going
amended judgment on contempt, the judge acknowledged that
while she could not "validate" the 2009 agreement
as a defense to contempt, see Quinn v.
Quinn, 49 Mass.App.Ct. 144, 145-148 (2000), she did
not find the father in "wilful contempt" of his
child support obligation. The judge found that, from January
1, 2007, to December 31, 2011, the father's total child
support obligation was $254, 697, taking into account the
retroactively modified child support beginning on August 11,
2011. The judge determined that from January, 2007, to May,
2012, the father made child support payments to the mother
totaling $190, 737. The judge found that the father was
"entitled to an equitable credit" of $500 per month
"for his sole support of Elliot from January 1, 2007 to
August 11, 2011." After applying the total equitable
credit of $28, 177, the judge determined that the father had
child support arrearages of $35, 783. The judge ordered the
father to pay the arrearages to the mother within thirty
days, "minus the college educational expenses" owed
by the mother under the amended judgment of modification.
This appeal followed.
mother challenges the $28, 177 equitable credit the judge
used to offset some of the father's child support
arrearage for the period from January 1, 2007, to August 11,
2011, when Elliot was living with him. The mother argues that
this equitable credit effectively constitutes a retroactive
modification of child support that was outside the
judge's power to award because no complaint for
modification was pending. See G. L. c. 119A, § 13 (a.) . The
father contends that there was no retroactive reduction of
his support obligation; rather, the credit merely reflected
that he had satisfied a portion of his child support
obligation by providing direct or actual support to Elliot
while Elliot was living with him.
weighing the parties' arguments, we must also consider
the broader context in which G. L. c. 119A, § 13 (a.),
was enacted. "The Federal Government has created an
elaborate procedural mechanism designed to help both the
government and custodial parents to secure the payments to
which they are entitled." Turner v.
Rogers, 564 U.S. 431, 444 (2011), citing
Blessing v. Freestone, 520 U.S.
329, 333 (1997). To that end, a State's eligibility for
certain Federal grants is conditioned on the operation of a child
support enforcement program that conforms to the Child
Support Enforcement Act (CSEA), Title IV, Part D of the
Social Security Act, 42 U.S.C. §§ 651-669b
(2012).See Blessing v.
Freestone, supra. See also
Doucette v. Ives, 947 F.2d 21, 24
(1st Cir. 1991). As a participating State, Massachusetts has
enacted G. L. c. 119A, §§ 1 et seq., which
"provides for child support enforcement services in
accordance with the provisions of [the CSEA]."
Morales v. Morales, 464 Mass. 507,
510 n.5 (2013) .
Laws c. 119A, § 13 (a.), provides that " [a]ny
payment or installment of support under any child support
order issued by any court of this commonwealth . . . shall be
on or after the date it is due, a judgment by operation of
law . . . [and] shall not be subject to retroactive
modification except with respect to any period during which
there is pending a complaint for modification, but only from
the date that notice of such complaint has been
given." In enacting § 13 (a.), "the
Legislature limited the power of a judge to reduce
retroactively any arrearages in child support except for any
period during which there is a pending complaint for
modification." T.M. v. L.H., 50
Mass.App.Ct. at 859, citing Quinn v.
Quinn, 49 Mass.App.Ct. at 147-148. "The object
of § 13 (a.) was to give support orders the finality of
other judgments, to assist the [Department of Revenue] in its
enforcement efforts." T.M. v.
L.H., supra, quoting from
Smith-Clarke v. Clarke, 44
Mass.App.Ct. 404, 406 (1998). By implicitly prohibiting
extra-judicial modifications of child support, § 13 (a.)
furthers the Commonwealth's policy of requiring court
oversight for all agreements pertaining to child support. See
White v. Laingor, 434 Mass. 64, 67
(2001), citing Massachusetts Child Support Guidelines, G. L.
c. 208, § 28, and G. L. c. 119A, § 1
("Selected enactments of the Legislature convey the
importance of judicial review of child support agreements
between parents"). See also Quinn v.
Quinn, 49 Mass.App.Ct. at 146, quoting from
Knox v. Remick, 371 Mass. 433, 437
(1976) ("[B]ecause '[p]arents may not bargain away
the rights of their children to support from either one of
them, ' . . . the Legislature has placed certain limits
on the ability of parents to enter into binding contracts
relating to child support"). It is for this reason that
we have previously held that an agreement to reduce child
support that has not received judicial approval does not
constitute a defense to a complaint for contempt.
Quinn v. Quinn, 49 Mass.App.Ct. at
although the parties evidenced an intent to jointly seek
modification of the child support order by executing and
filing the 2009 agreement with the Probate and
Family Court, that filing was rejected on procedural grounds
and the matter was not further pursued. As such, there was no
"pending" complaint for modification in 2009 for
purposes of G. L. c. 119A, § 13 (a.), and the judge was
prohibited from retroactively reducing the father's child
support obligation. As the judge correctly determined, she
did not obtain authority to reduce retroactively the
father's child support obligation until 2011, when the
mother was served with the second complaint for
said, as we acknowledged in T.M. v.
L.H., "[A] number of [other]
jurisdictions" with statutory provisions similar to G.
L. c. 119A, § 13 (a.), "have recognized . . .
special circumstances of an equitable nature . . . that
justify the grant of a credit to a support obligor for
payments or expenditures made that were not in strict
compliance with the support order or judgment." 50
Mass.App.Ct. at 861, citing Alaska Dept. of Rev,
v. Campbell, 931 P.2d 416, 419-420 (Alaska
1997), Goold v. Goold, 11
Conn.App. 268, 274-275 (1987), Baer v. Baer, 263 Ga.
574, 575-576 (1993), and Griess v.
Griess, 9 Neb.App. 105, 112-113 (2000). The father
urges us to follow those jurisdictions and to rule that
"a judge, in compelling circumstances of an equitable
nature, and without contravening G. L. c. 119A, § 13
(a.), may apply a credit in calculating child support
arrearages to reflect payments made in a manner other than as
directed by the original order." T.M.
v. L.H., 50 Mass.App.Ct. at 8 61.
as we have noted, a number of other jurisdictions have
recognized the concept of equitable credits, they have not
done so on uniform grounds. As a general proposition, we can
only say that the concept is clearly rooted in equity and its
application is driven by equitable considerations. Beyond
that, we discern three primary strands of analysis: (1) some
courts grant an equitable credit when the elements of
equitable estoppel are established; (2) some courts grant an
equitable credit when the support obligation has been
fulfilled by an alternative method; and (3) some courts
simply apply general equitable principles to determine
whether an equitable credit is in order. Regardless of the
approach used, the jurisdictions that allow credit on an
equitable basis largely agree that the adjustment of support
must not be unilateral, the child's need for adequate